Kesar Singh vs Lt. Governor Of Delhi And Ors.
1994 Latest Caselaw 323 Del

JUDGMENT

Anil Dev Singh, J.

(1) By this Writ Petition, the petitioner calls question the letter of the Deputy Registrar (INDI.) Cooperative Societies, Delhi Adminitration, Delhi a dated October 5, 1988 requiring execution of a fresh sublease of Plot No. H-12, Udyog Nagar, Delhi and the consequential letter of the Administrator of the respondent No. 3, the Manufactures' Cooperative Industrial Estate Limited, dated january 11, 1989 whereby the petitioner has been asked to sign a fresh/supplementary sub lease of the plot.

(2) The facts giving rise to the writ petition are as under : On May 31, 1963 the petitioner applied turn the membership of the respondent No. 3, a society registered under the Societies Registration Act,1860, which was formed for the purpose of acquiring land for industrial purposes and paid a sum of Rs.10.00 as admission fee, Rs.1100.00 as value of one share and Rs.3000.00 as earnest money for the land (See Annexure P-3 collectively). On July 1, 1965 the petitioner was admitted as a member of the society. He also made payments on various dates for allotment of the industrial plot and secured receipts therefore from respondent No. 3. Eventually on March 7, 1979 a perpetual sublease in respect of Plot No. H-12, Udyog a Nagar, Delhi was executed by the President of India through Respondent No. 3 in favor of " Shri Kesar Singh son of Shri Arjun Singh, M/s. Kesar Singh Rawel Singh, Shop No. W-85, Delhi Development Authority Market, Mayapuri, New Delhi." It is not disputed that the original sub lease was signed by the petitioner alone. However, subsequently by letter dated October 5, 1988 issued by the office of respondent No. 2, the Deputy Director, Delhi Development Authority, Vikas Sadan, New Delhi was intimated, that as per the information provided by the Administrator of the Manufacturers' Co-operative Industrial Estate Ltd. and subsequent verification by the department, Plot No. H-12, Udyog Nagar, Delhi was required to be allotted to M/s. Kesar Singh Rawel Singh with partners namely Kesar Singh and Rawel Singh, who also happened to be brothers. The letter of the respondent No. 2 also required the execution of a sub lease in the name of M/s. Kesar Singh Rawel Singh with partners Kesar Singh and Rawel Singh. A copy of this letter was endorsed to the respondent No. 3 for doing the needful. Besides the copies of the same were sent to the petitioner and respondent No. 5. The petitioner thereupon sent a representation/notice dated November 21, 1988 against the aforesaid direction to the respondent No. 2 and respondents 1, 3 and 4. It appears that on receipt of the direction from the respondent No. 2, the respondent No. 3 asked the petitioner by its letter dated January 11, 1989 to sign the supplementary deed and for this purpose directed him to report on January 17, 1989 at its site office. It is this action of the respondents 2 and 3 which has been impugned before us in the writ petition and for which show cause notice was issued to the respondents.

(3) Learned counsel for the petitioner submitted that allotment having once been made in favor of the petitioner could not be changed. He further submitted that it was the petitioner who had made all the payments from his own funds to the respondent No.3 for securing the allotment of the plot and no money was deposited by him on behalf of the partnership. It was contended that the partnership stood dissolved with effect from March 31, 1968 and the petitioner had been conducting the business as proprietor of his firm. He also claimed that the petitioner was not given any opportunity to have his say in the matter before the respondents 2 and 3 took the impugned action

(4) Learned counsel for the respondent No.5 on the other hand submitted that the petitioner, secured the allotment of the plot on be hall of the partnership with the petitioner and the respondent No. 5 as partners. All the payments to the respondent No. 3 for securing the plot were made on behalf of the partnership and from its funds, which fact is evident from the receipts filed by the petitioner himself. He also contended that the sub lease dated March 7, 1979 itself indicates that the same was made in favor of the partnership, though composition of the partnership was not mentioned therein and now the fresh/supplementary sub lease would take care of that aspect.

(5) We have considered the respective submissions of the learned counsel for the parties and we are of the view a that the impugned actions cannot be interfered with under Article 226 of the Constitution of India as the petitioner is seeking to establish his right over the whole of the land to the exclusion of his brother and partner (respondent No. 5) without taking recourse to the normal remedy of a civil suit or a Revision provided under Section 80 of the Delhi Co-operative Societies Act, 1972. The fact that the controversy relates to the disputes inter se the petitioner and the respondent No. 5 in regard to the immovable property is not only manifest from the aforesaid submissions of the learned counsel for the parties but is also apparent from their pleadings.

(6) The case set up in the petition is that the consideration for acquiring the perpetual sub lease in the. land was paid by the petitioner from his personal funds and the respondent No. 5, his brother and partner, was merely his nominee, who had no right, title or interest in the said plot. The partnership was dissolved on March 31, 1968 and thereafter the petitioner was doing business as the sole proprietor of M/s. Kesar Mal Rawel Singh. Assessment orders passed by the Income Tax Officer, District V, New Delhi in respect of the assessment years 1968-69 to 1970-71 have been filed along with the writ petition in support of the stand.

(7) This position was controverter by the respondent No.5 in his reply to the show cause notice. It is the case of the respondent No. 5 (represented by L.Rs.) that the membership of the respondent No. 3 was applied in the name of the partnership firm viz. M/s. Kesar Singh Rawel Singh and payments to the respondent No. 3 were made on its behalf and from the funds of the partnership. It was averred that the firm continued to exist and was not dissolved. It was also staled that the Administrator appointed by the Registrar, Co-operative Societies under Section 32 of the Co-operative Societies Act, 1972 examined the matter in dispute between the parties and came to the conclusion that the application for the membership of the society was in the name of the firm and sub lease of plot should be executed in the firm name. This was communicated to the parties including the petitioner through copies of the letter dated November 9, 1982 which was addressed to the Under Secretary(CS), Land & Building Department, Delhi Administration, Vikas Bhawan, 1.P. Estate, New Delhi.

(8) In the rejoinder the petitioner has controverter the stand taken by the said respondent and has also asserted that he did not receive the copy of the letter of the Administrator dated November 9, 1992.

(9) Thus a review of the pleadings clearly and manifestly shows that the dispute between the parties relates to the title to the land. The documents accompanying the pleadings also do not clarify the position. Therefore, it cannot be said with any amount of certainty that the petitioner became a perpetual sub lessee in his own right and not on behalf of the partnership of his brother and himself.

(10) Receipts issued by the respondent No.3 on which reliance has been placed by the petitioner show that the payments were being received from Kesar Singh of M/s. Kesar Singh Rawel Singh, New Delhi. The details of these receipts are as under: Receipt No. Date of Payment Amount 1093 31.05.1963 Rs. l,100.00 1094 31.05.1963 Rs. 3,000.00 1584 05.04.1966 Rs.14,625.00 875 13.09.1971 Rs. 7,805.00 2211 31.12.1975 Rs.35,389.00 4051 22.12.1975 Rs-29,329.20 4327 01.02.1988 Rs. 363.00

(11) The mere reliance on the receipts by the petitioner without anything more does not advance his plea that the payments to the respondent No. 3 were being made by the petitioner on his own behalf from his own funds and not on behalf of the partnership funds.

(12) Similarly the assertion of the petitioner that the partnership was dissolved on March 31, 1968 and the petitioner was assessed as the sole proprietor of the firm for the assessment years 1968-69 to 1970-71 without further evidence does not rule out the possibility that the petitioner applied for the plot in question on behalf of the partnership firm with the petitioner and his brother respondent No. 5 as partners as admittedly the partnership was' still in existence on May 31,1963 when the plot was applied for. Besides, the allegation that partnership was dissolved in 1968 is refuted by the respondent No. 5 in his reply. Respondent No.5 has also placed on record property tax bill issued in the name of M/s. Kesar Singh Rawel Singh by the Municipal Corporation of Delhi in regard to the property in question for the assessment year 1989-90 and a property tax notice dated October 31, 1989 issued by the Deputy/Assistant Assessor and Collector, N.G. Zone.

(13) We would also like to comment upon another plea of learned counsel for the petitioner that the impugned action by the respondent No. 2 asking the respondent No. 3 to get a fresh sub lease executed in favor of M/s. Kesar Singh Rawel Singh with partners as Kesar Singh and Rawel Singh was taken behind the back of the petitioner. It may be recalled that the petitioner gave a representation/notice dated November 21, 1988 against the impugned action of the respondent No.2 but no such grievance in this respect was made therein. All that was stated in the notice/ representation was that the direction issued by the office of the Registrar of Cooperative Societies was illegal, ultra vires and void and against the principles of natural justice and fairness on the grounds which were taken in paras (a) to (r) of the Grounds of the petition. In none of the grounds, however, any such plea of denial of opportunity of hearing was raised. We are, therefore, not prepared to entertain a plea which was not raised in the representation/notice and is being a raised now for the first time in the writ petition. The decision to have a fresh lease executed was taken by the respondent No. 2 and the respondent No. 3 was merely asked to perform the ministerial act of getting the fresh lease deed executed. It was pursuant to the direction of the respondent No. 2 that respondent No. 3, which is a co-operative society, requested the petitioner to execute the fresh sub lease on January 11, 1989. It also needs to be noticed that the petitioner has not executed the fresh sub lease so far.

(14) In view of the aforesaid discussion, we do not find any merit in the writ petition and the same is dismissed in liming.